In 1709 (or was it 1710?) the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all. To contact the 1709 Blog, email Eleonora at eleonorarosati[at]gmail.com

"Oscar
Wilde in his inimitable fashion once said, “mere color, unspoiled by meaning,
and unallied with definite form, can speak to the soul in a thousand different
ways.” Ironically, Wilde’s eloquent description of color resonates with the
British art maestro Anish Kapoor’s description of the complete absence of
color, which goes by the name Vantablack.

A unique
material composed of millions of incredibly small nanotubes grown on a metal
surface, Vantablack is recognized by the Guiness World Records as the World’s Darkest man-made substance. In an interview, Mr Kapoor describes the unique qualities of Vantablack’s use in art
and the powerful responses it evokes.

This
unique material has recently surfaced in the context of a potential copyright row. According to Surrey NanoSystems, a
British company that developed the material, Mr. Kapoor alone possesses the
exclusive license to use Vantanblack in artistic creations.

Appalled by the apparent monopolization of a
colour, several in the creative world have vehemently opposed it.
The protection afforded to colours under the intellectual property regime has
been hoarsely advocated by several MNCs in the past- be it Cadbury’s purple or T-Mobile’s
magenta.

The
exclusive ownership of colours by individuals, particularly in the context of
artistic works, though rare, is not unheard of. What is still in a state of flux
however, is the copyright protection of colour.

The man that ‘bought’ blue

The
oft-touted precedent for the ownership of color is that of International Klein
Blue (IKB), a hue mixed by the French artist Yves Klein in 1960. IKB was developed by suspending dry pigments in synthetic resins, resulting in the
individual particles of the pigment retaining their brightness and intensity
over time.

In this
regard, Klein received the Soleanu envelope from
the French Patent office, ie a system peculiar to the French patent system.
What’s interesting is that Klein’s patent did not extend to the
colour or the binding medium, but was limited to its chemical
concoction. Vantablack, on the
other hand, is licensed exclusively to
Kapoor Studios UK for its use in the field of art.

Gold and Vantablack

The norms of owning colour

Some sources claim that Mr Kapoor now owns a
copyright in respect of Vantablack. The copyright protection of a
colour has not surfaced yet. As stated above, Klein’s rights over IKB pertained
to a patent, not copyright.

Other instances of ownership of colors are largely in the domain of
trade marks. US courts have seen a plethora such cases-the first being In Re Owens-corning FiberglassCorporation, where
the Court of Appeals for the Federal Circuit ruled that in limited
circumstances, a color that has become associated with a specific manufacturer
can qualify as a registrable mark. The appellants in this case were given the
right to prevent competitors from using the color pink in their insulation
products. This marked the first time a company in the US was granted a trade
mark for a particular colour.

Nearly a decade later, the US Supreme Court in Qualitex Co v Jacobson Products Co, Inc, held
that there existed no objection to the use of color alone as a trade mark, when
the colour has attained a secondary meaning and therefore identifies and
distinguishes a particular brand.

Ever since, the courts have dealt with several cases pertaining to the
protection of colours as trade marks, especially in the context of
pharmaceutical trade dress. Vantablack, however, cannott be protected by trade
mark as the question of any secondary meaning identifying it with any
particular brand does not arise.

Just black and white

A colourful dichotomy?

The idea-expression dichotomy forms the foremost axiom of copyright law. In this regard, “ideas, sentiments or creations
of the imagination” are often contrasted with "the language,
idiom, style, or the outward semblance and exhibition" of such creation. However, the boundary between an idea and an
expression is at times unclear, and as posited by Judge Learned Hand, “nobody
has been able to fix the boundary, and nobody ever can.”

The question in this case is whether a colour forms
an idea or an expression. What is to happen if colours are considered as
expressions of ideas? Say,
red for danger, white for peace, white and gold/blue and black for
consternation, etc. These colours, much like words, form common property to the
human race, and are therefore as susceptible to private appropriation as air or
sunlight. [(Holmes v. Hurst, 174 U.S. 86 (1899)] The purpose of
limiting copyrights to expressions, and not ideas is to prevent the
monopolization of the latter. Only when arranged in an original form, can they
merit copyright protection. As held in an Indian landmark ruling,
every expression does not ipso facto become protectable, and
must pass the test of originality, which requires the exercise of skill, labour
and judgment in creating the work. A colour alone is lacking in
originality, and its protection would arguably result in monopolization of an
idea which would strike at the foundations of copyright law.

Additionally,
certain countries (US for
instance) require fixation of the work in a tangible medium as a prerequisite
for copyright protection. Therefore, ideas, plots, themes, and, arguably in the
same vein, color cannot be copyrighted on this ground alone.

As the
requirement of tangible fixation is optional under the Berne Convention, certain countries have opted not to include this requirement in their
domestic laws. The Indian Copyright Act, 1957 (Act) for instance, makes no such
mention. Section 13 of the Act lists the classes of original work over which a
copyright subsists, which includes artistic works, defined under section 2( c )
as: (i) a
painting, sculpture, drawing (including a diagram, map, chart or plan),
engraving or photograph; (ii) work of architecture; (iii) any other
work of artistic craftsmanship.

A colour
by itself would not form an artistic work under the aforementioned section.
Only when used in a painting, sculpture, drawing, etc, can a copyright be
claimed. Section 16 of the Act further prevents the entitlement of copyrights
or any similar rights except in accordance with the provisions of the Act. It
therefore would not be plausible to categorize Vantablack as an ‘artistic
work', thereby making it unfit for copyright protection.

Like
Klein, SurreyNanoSystems could patent the material. The company’s FAQ portal states that Vantablack is not a paint or pigment, but comprises of
a functionalized forest of millions upon millions of nanotubules, grown at 750
degrees centigrade.

Vantablack
has diverse industrial
applications in aerospace
technology, touch screens, ultra light wiring, etc. The material appears to
check the boxes of novelty, non-obviousness and utility, thereby making it
patentable. Thus, if Vantablack was to be monopolized in any manner, it would
be more palatable as a patent, rather than copyright."

Tuesday, 5 July 2016

U.S. Internet provider Windstream is asking a New York federal court to shield the company from broad piracy accusations. The ISP filed a complaint against BMG and Rightscorp after it was accused of direct and contributory copyright infringement. The lawsuit follows on the heels of a similar complaint by fellow Internet provider RCN, which also seeks legal clarity in the wake of several conflicting decisions on whether or not Internet provider can be held liable for subscribers who share pirated file - but clearly prompted by the decision of a Virginia federal jury - in a case brought by BMG Rights Management against Cox Communications - who answered in the affirmative.

PRS for Music has won the Copyright Tribunal reference brought against it by ‎ITV in July 2014 - a final hearing took place for two weeks in November 2015. The decision concerns, amongst other things, the annual sum ITV must pay to PRS for Music to use musical works in its programmes and broadcasts. In August 2015, PRS wrote to its members to announce it would be temporarily increasing the admin fees it charges on royalties collected from TV companies in order to fund the legal costs of the Copyright Tribunal hearing. The Tribunal decided that the base royalty (beginning in 2010) would be some £24 million for all ITV uses (including breakfast TV) adjusted by (a) BARB viewing figures for ITV during each year and (b) the percentage change in RPIJ (the RPI inflation measure). Michael Simkins LLP (now Simkins), who acted for the PRS, said the Tribunal's decision "is the most significant decision relating to such rights for almost 20 years, since the 1997 BSkyB case."PRS for Music has also written to its members saying that from the end of June the BBC will need to seek prior approval from publishers for use of North American repertoire. Why? well it seems the BBC’s blanket licence with PRS for Music and a number of BBC Worldwide’s MCPS licences are due to expire on 30 June 2016 and whilst negotiations with the BBC to agree new licences continues, and the PRS have agreed that the existing licences will be extended for a 6 month period from 1 July 2016 to 31 December 2016, as a condition of extending BBC Worldwide’s TV Programme Sales licence, the MCPS Board has asked that the BBC seek prior approval from publishers for uses of North American repertoire in programmes which are sold into the US and Canada on a trial basis, although if approved any licence will be at MCPS rates. See more on use rates here and existing approvals here.

New copyright legislation has come into effect in Cayman to provide greater legal protection for Cayman’s musicians, visual artists and others in the creative fields, and is the first step in modernising intellectual property legislation. Commerce Minister Wayne Panton said government had plans to present more bills in September to update existing trade mark legislation for local registration and design rights. Asparagus - yes - and copyright: A New Zealand company, Oraka Technologies has been awarded $4.1 million in damages in a copyright case involving an automatic asparagus grading machine. Tired of grading asparagus by hand, Oraka Technologies owner Michael Schwarz developed the first automatic asparagus sorter, known as the Oraka Grader, in the early 1980s and asked Napier Tool & Die to prepare drawings for a cup that transported the asparagus for the Oraka Grader, and Napier began manufacturing it for Oraka Technologies. But a rival company Geostel Vision used Napier to manufacture their own cup assembly that was alleged to be substantially copy of Oraka's design and in 2013 the Court of Appeal found that Geostel and Napier Tool & Die copied part of the machine.

And staying "down under", Australia’s Full Federal Court has confirmed digital data streams are not protected by the Copyright Act. The court upheld Justice Annabelle Bennett’s December 2014 ruling that held that copyright did not subsist in digitally streamed broadcasts. The case is actually a taxation case (Commissioner of Taxation v Seven Network Limited), which revolved around whether payments made to the International Olympic Committee for broadcasting rights by Seven were royalties and therefore taxable. The court found that “a cinematograph film in which copyright subsisted under the Copyright Act is not made until the first copy is made” and that there was no way for the broadcast to be reproduced without an external receiving device. More on IPPro here and the judgment can be found here. Seven Network Limited v Commissioner of Taxation [2014] FCA 1411,

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